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NEK Human Services Claims Attorney’s Subpoenas are Harassment

NEWPORT, VT - Attorney Gertrude Miller and Northeast Kingdom Human Services (NKHS) are going head to head in a battle over information that Miller says is vital to her client's defense in the case of State v. Christopher Smith. Smith, who has a developmental disability, was charged with pulling a knife on journalist Jennifer Hersey-Cleveland and demanding she take off her clothes. Hersey-Cleveland did not fall victim to the threats and managed to escape Smith.Miller is arguing a diminished capacity defense, which means Smith was suffering from some mental illness or defect that made him less responsible for his actions.Miller, in an attempt to pursue this defense, has subpoenaed numerous records from NKHS, the agency that oversees Smith's mental health evaluations and treatment. According to documents filed by Miller in Orleans County Court, existing law gives her wide latitude in seeking her client's mental health records.NKHS, however, views Miller's subpoenas as harassment and has alleged so in a motion asking the court to quash the subpoenas, that is, to stop them from being used. Further, NKHS is seeking a protective order against Miller to force her to go to court every time she wants to get a subpoena for their records.The motion is highly unusual and attorneys, who are considered officers of the court, usually have free reign to subpoena anything relevant to their cases. NKHS, through its attorneys, is arguing that the information sought by Miller "far exceeded the boundaries of reasonable discovery permitted by the Vermont Rules of Criminal Procedure." What is unusual about this claim is that it is not being made by the county prosecutor, who is the opposing party in the case, but, essentially, by a witness. Miller has sought records from NKHS before, and when she didn't get all the records she felt were necessary to her client's defense, filed a motion to compel and for contempt with the court, asking the court to force NKHS to give her the records and to punish NKHS for not doing so. Vermont courts are often hesitant to issue contempt orders unless the matter is extreme, and a finding of contempt could result in anything from a verbal reprimand to a fine to incarceration, depending on the case. Motions to compel, however, are routinely granted.NKHS' arguments include allegations that Miller's requests did not follow federal and state guidelines for obtaining the information and that, since her client is a ward of the state, only the state guardian could authorize release of the document, not the client.Miller has gone up against the state guardian in several other well-publicized cases in the past and had expressed concern that she was in a Catch-22 (no win) position. If the interest of the state is to control her client, and the state is prosecuting the case, even if it is a different arm of the state, then the chances of the guardian agreeing to release her client's records diminishes significantly, she has said in the past.NKHS, in its motion, asserts that while Smith has a right to access his treatment records, that right does not extend to the creation of new documents, such as an inventory of records or an accounting of financial transactions. NKHS also stated that Miller should not be allowed to access "proprietary business information," such as agency contracts, etc. Miller responded by noting that "proprietary" interests usually attach to trademark and patent law and she does not accept that definition of the information sought. Miller's primary arguments in her response to NEKHS' motions are twofold: 1) That her client's due process rights are being violated by denying him access to records that would support the defense of diminished capacity; and 2) That NKHS is treating her differently than they would any other attorney seeking the same information."I take my profession and responsibilities to my clients, opposing counsel, parties, and non-parties, and to the Court, seriously," she wrote in the response. "I do not mindlessly, casually, issue subpoenas on a lark, out of boredom, or as an idle pastime, which it seems, is exactly what NKHS is implying. Such a characterization is demeaning, dismissive, and insulting to the undersigned."Miller also argues that if she had to go to court and ask for a subpoena every time she needed one, it would "tip her hand" by allowing NKHS to know what she is looking for ahead of time and seek to block her access to that material, force her to reveal her legal strategy, and delay proceedings, thus denying her client a speedy trial.It is now in the hands of the court to determine if Attorney Miller will be able to seek the records she believes her client needs in his defense or if, as NEKHS asserts, Miller is harassing the agency for material which, in the agency's opinion, won't help Smith's case.